Extra territorial laws such as this are at present only in place for terrorist activities and child sexual abuse.

Burney introduced the amendment in an effort to protect women overseas she considers to be exploited by Australian parents seeking a surrogate.

It is a little on the grandiose side to imagine that any NSW law will have any impact at all on commercial surrogacy in, say, India.

But Burney’s agenda is punitive – she has admitted that it is intended to “punish” couples who seek overseas surrogates. It will do nothing to prevent couples using overseas surrogates, as she also admitted in the program.

What it will do is put couples at risk of hefty fines and custodial sentences of up to two years if on returning to NSW they attempt to obtain parentage orders for their babies.

Parents are unable to apply for the orders without disclosing the circumstances of their child’s birth. If in an effort to avoid prosecution the parents don’t apply for parentage orders, their children are cast into a legal limbo that leaves them disadvantaged and discriminated against.

Ms Burney was supported by Dr Renate Klein, a “pro life” or anti choice feminist, depending on your point of view. Dr Klein steadfastly refused to acknowledge the right of adult couples to make responsible choices about commercial surrogacy. She stated that we cannot all have what we want, and when couples can’t have children, they must learn to live with it.

There has been much discontent around Burney’s amendment, and widespread agreement that it was passed without anything like the amount of public discussion and consultation it should have had.

It was clear from the couples in the studio who’d used surrogates that they are decent, fair people who went to great lengths to ensure the women who carried their babies were decently treated.

A father told the story of how his twin boys were born prematurely, and he’d lost them both. Klein immediately demanded to know if the surrogate got paid anyway.

The father broke down, and haltingly responded that of course she did, and that he thought it was disgraceful that Klein had had asked that question. I have to say I agree with him.

While there are of course incidences of exploitation, constructing all surrogacy arrangements as exploitative is extremely dishonest. This is what Burney and Klein have done, in order to further their personal agendas.

The topic is too vast, and too important to be left to the agendas of two women whose primary purpose is punitive and who’s moral position, in the case of Klein, extremely narrow.

Lastly we crossed to a short interview with twin boys carried by an American surrogate, whose parents were in the studio audience. The boys know all about their gestation, and are looking forward to a trip to the States where they’ll to go to Disneyland and spend time with the woman “who borned us.”

It seems unlikely that Burney will be a Minister after this weekend. She might be out of a job as well. She leaves a mean-spirited, dishonest and disempowering legacy to couples and their children. It is probably too much to expect that this amendment will be revoked. This means there will probably be babies in NSW who have no legal status and no legal protection, and no legal identity.

If Nicole Kidman and Keith Urban had hired an overseas surrogate to carry baby Faith Margaret while living in any of their NSW homes, and then returned with their baby,they would be subject to fines and jail sentences, under the terms of the amendment to surrogacy legislation introduced by NSW Minister for Community Services, Linda Burney.

On March 1 2011 NSW legislation on surrogacy will pass into law, making commercial surrogacy illegal in the State.

Linda Burney has added an extra territorial amendment to the original surrogacy bill, extending the criminalisation of commercial surrogacy to those who employ overseas surrogates.

The penalties for using an overseas surrogate will be a fine of some $110,000, and/or two years jail.

As well, the child parents bring home will have no legal rights and protection, as do all other children in NSW, regardless of the method of their conception.

Parents may apply for parentage orders for their children, however in doing so will run the risk of criminal prosecution, with fines and possible jail terms.

This would seem a powerful disincentive to applying for appropriate orders, leaving the children in a right-less and unprotected limbo.

As well, Burney’s amendment assumes that all those seeking overseas surrogacy arrangements will look for underprivileged women who need the money.

There are many commercial surrogates overseas who are middle class women, and who make an informed choice to carry a child for another woman.

The Minister’s justifications

Minister Burney’s justification for the extra territorial clause is that she wishes to, in her language, punish those who “take advantage of women who hire out their bodies because they are poor.” Criminalizing those who have been unable to find altruistic surrogates in NSW and turn instead to women overseas is the realisation of Burney’s desire to punish.

It is unrealistic in the extreme to expect this criminalizing of a minority group of NSW citizens will make any dent at all in the exploitation of women in countries where commercial surrogacy is legal. One might as well criminalize everyone who buys a t-shirt made in a Bangkok sweatshop by six year old children who are paid 20 cents a day for their labours.

Or what about the Australian citizens who travel overseas for say, a kidney transplant to a country where the traffic in human organs is unregulated and people sell the parts they can live without for an income? Are we going to criminalize those citizens and prosecute them when they come home with their new illegal part on board?

A divisive issue

Commercial surrogacy is a morally divisive issue. Those against it argue that it results in the depersonalisation of pregnancy and childbirth, and that it treats both women and children as commodities. Wealthy couples can “rent a womb” from financially vulnerable women, and this, in the eyes of some, is exploitation of the worst kind.

Commercial surrogacy is felt by some to be degrading to both women and children. It is perceived as morally offensive, and as treating other human beings merely as a means to an end.

There are potential emotional difficulties on all sides, including that of the child.

The argument for (briefly)

Those who argue for commercial surrogacy point out that it is a matter of personal autonomy for all the adults involved. If a woman wishes to act as a surrogate that is her business, they argue, and she is entitled to remuneration for her time and work.

To proscribe commercial surrogacy on the grounds that it’s harmful to those undertaking it is interference by the State in personal matters that are not the State’s business, and that belong in the realm of the private conscience, some argue. It is not acceptable, this argument continues, for the State to impose and enforce one moral aspect against private actions that do not harm others.

What is Burney’s amendment good for?

It seems highly unlikely that Burney’s amendment will prevent couples seeking commercial surrogacy overseas. What it will most certainly achieve is the legal alienation of the resulting children in this State. It will cause parents to conceal their activities, perhaps even from their own families, for fear of prosecution.

It will cast an unacceptable and permanent cloud over such families and their children. It will drive those having no option but commercial surrogacy, underground.

And for what?

To satisfy Burney’s need to take a moral stand against the laws of other countries.

Moral stands are often good and necessary things, but only when they’re realistically weighed up against their usefulness, and their consequences. In this case the usefulness of such a moral stand would seem to be minimal. The consequences, on the other hand, are horrible and permanent for the families concerned.

The reality is that couples needing the services of a surrogate are going to find one, somehow, somewhere. Those of us, who like Ms Burney have not needed to take this drastic action in order to create our families, need to be especially careful when prescribing for and judging those less fortunate in that respect.

It is an especially weighty responsibility for Burney, as she is in a privileged position. She has the power to create a situation in which those less fortunate than herself are criminalized, and their children cast into a legal limbo.

Burney’s extra territorial amendment could well be seen by some as an abuse of her power. Perhaps it isn’t a politician’s role to punish those he or she disagrees with, on moral grounds that are far from unanimous in the community.

Perhaps it is especially distasteful when a politician acts on a personal desire to punish constituents who are already struggling with the fraught issue of creating their family.